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Tsilhqot’in Decision Impacts Considered

Sept. 23, 2014

One of the most important Supreme Court of Canada decisions in the history of British Columbia was the focus of a plenary policy session on Tuesday.

A packed room of nearly 600 delegates heard opinions from Chief Roger William, Xeni Gwet’in First Nation and a Director on the Cariboo Regional District; Chief Percy Guichon from Alexis Creek First Nation; and Gregg Cockrill from Young Anderson on the recent decision by the Supreme Court of Canada with regard to Tsilhqot’in land title.

Mr. Cockrill, who also teaches local government law at UBC, began by describing the historical, legal and practical significance of the Supreme Court of Canada’s decision. Cockrill referenced the likelihood the precedent setting decision would lead to other similar decisions, the fact that the decision recognized title on a territorial basis, and that aboriginal title has greater importance than fee simple title.

“Fee simple title is not protected against action by the government – including expropriation without compensation,” said Cockrill. “Aboriginal title is entirely different. While having the features of fee simple land, the interest is also protected by the Constitution. Any kind of governmental action would need to meet strict Supreme Court tests.”

Cockrill referenced the extensive experience of local governments in dealing with crown lands. In areas covered under land title decision, local governments will need to work together as an interested third party with First Nations. Cockrill also noted that the decision would increase the need for neighbourly relations between local government and First Nations.

Chief William discussed the lengthy legal process leading to the Supreme Court of Canada decision, noting that the Xeni Gwet’in First Nation appealed an earlier BC Court of Appeal decision that limited aboriginal title to “postage stamp” lands within existing village boundaries. By granting title over a large territory, “governments and industry should work with First Nations to seek their consent to development. The Supreme Court of Canada judgment points to a new path for reconciliation.”

Chief Guichon said “we believe this gives all levels of government and First Nations the opportunity to embark on a new course and a new relationship and that the Supreme Court of Canada decision will improve relationships. It is the first step to reconciliation because it confirms First Nations’ rightful place with all levels of government.”

Guichon concluded by praising Premier Christy Clark for signing a letter of understanding and visiting the Xeni Gwet’in First Nation – a first for any BC Premier.